| People v Acosta |
| 2015 NY Slip Op 09731 [134 AD3d 1525] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vLuis P. Acosta, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Bridget L. Field of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered March 15, 2011. The judgment convicted defendant, upon a jury verdict, ofattempted criminal sexual act in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofattempted criminal sexual act in the first degree (Penal Law §§ 110.00,130.50 [1]), defendant contends that the evidence is legally insufficient to establish theelement of forcible compulsion beyond a reasonable doubt. Defendant failed to preservethat contention for our review by a motion for a trial order of dismissal specificallydirected at that alleged insufficiency, and he also failed to renew his motion afterpresenting evidence (see Peoplev Bowman, 113 AD3d 1100, 1100 [2014], lv denied 24 NY3d 1082[2014]). In any event, we conclude that the evidence, viewed in the light most favorableto the People, is legally sufficient to support defendant's conviction (see generally People vDanielson, 9 NY3d 342, 349 [2007]). Moreover, viewing the evidence in lightof the elements of the crime as charged to the jury (see id.), we reject defendant'sfurther contention that the verdict is against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Although an acquittal would not havebeen unreasonable, where, as here, "witness credibility is of paramount importance to thedetermination of guilt or innocence, [we] must give [g]reat deference . . . [tothe jury's] opportunity to view the witnesses, hear the testimony and observe demeanor"(People v Harris, 15 AD3d966, 967 [2005], lv denied 4 NY3d 831 [2005] [internal quotation marksomitted]; see Bleakley, 69 NY2d at 495). The jury credited the victim's testimonyconcerning defendant's use of physical force in his attempt to have her perform oral sexon him, and we perceive no basis in the record to disregard the jury's credibilitydetermination in that regard.
Defendant's contention that the prosecutor committed misconduct is unpreservedinasmuch as Supreme Court sustained defense counsel's objections to the prosecutor'squestions at issue and gave the jury a curative instruction which, in the absence of furtherobjection or a request for a mistrial, "must be deemed to have corrected the error to thedefendant's satisfaction" (People v Heide, 84 NY2d 943, 944 [1994]).Defendant's further contention that the court's Sandoval ruling constitutes anabuse of discretion is similarly unpreserved (see People v Riley, 117 AD3d 1495, 1495-1496 [2014],lv denied 24 NY3d 1088 [2014]). We decline to exercise our power to reviewthose contentions as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]).
Contrary to defendant's contention, we conclude that the court properly instructed thejury with respect to the element of forcible compulsion for criminal sexual act in the firstdegree, "even though it did not repeat the definition of th[at] term[,] which it hadprovided to the jury during its earlier charge" with respect to rape in the first degree(People v Howard, 214 AD2d [*2]418, 418[1995], lv denied 86 NY2d 843 [1995]).
We have reviewed defendant's remaining contentions and conclude that they lackmerit. Present—Smith, J.P., Peradotto, Carni, Lindley and Whalen, JJ.